Should Everyone Who Uses A Phone Or A Computer As Part Of A Crime Get A Longer Sentence?

from the so-says-the-8th-circuit dept

We've noted just how far the Computer Fraud and Abuse Act (CFAA) has been stretched lately. The law -- which is supposed to be used against those involved in malicious hacking -- actually breaking into computer systems and such -- keeps being used in ways totally different than intended, such as claiming that just visiting a website you weren't supposed to can now be deemed as "hacking." Michael Scott alerts us to another unintended consequence of the broad interpretation of the CFAA, involving a sex offender who got an extra 28 months on his prison sentence because he used a phone.

Now, as the article notes, if there's anyone out there who deserves a longer prison sentence, it's a sex offender who victimizes minors. But that doesn't mean we should condone stretching a computer hacking law in a ridiculous manner. In this case, because the CFAA allows increased sentencing for someone who used a computer in the commission of the crime, the judge decided that a rather standard mobile phone counts as a "computer" under the law. Even though it was a standard mobile phone, and not a smartphone or feature phone, the judge quoted Steve Wozniak in pointing out that "Everything has a computer in it nowadays."

Of course, that should be a reason why we should worry about this kind of sentencing. The idea that anyone deserves more time in prison solely because they used a mobile phone doesn't make much sense. It continues to make a mockery of the law. If the guy deserves to be in prison longer for the actual despicable crime he committed, then the law should allow such longer sentences. But the courts shouldn't twist the CFAA to accomplish that goal.

Re:

Yup

My Prius has something like 14 major computers in it. If I commit any crive, am I going to be charged with 14 counts of using a computer while committing a crime? Plus, I have an iPhone. That would be 15 counts.

Re: Re: Yup

I gave Assange the instructions for adding automatic doorlocks to the Prius AND the means to disable the lock that prevent entering a destination into the NAV system WHILE the vehicle is in motion. But, don't tell anyone.

My Prius is a rolling arsenal of potential piracy tools. ANd, it's both mobile AND stealth.

But

Hey a phone is a computer tell Sony to eff off

If the courts now believe that phones are computers, then the DMCA exemption for jailbreaking a phone should apply to all computers. Twisting their logic in the other direction, Geohot should be declared innocent for jailbreaking his PS3.

Re: Re: Hey a phone is a computer tell Sony to eff off

Before you committed the crime, you woke up by alarm clock, watch TV for a while, checked your email, glanced at your digital watch, microwaved some food, used your cell phone and drove to the scene. According to the CFAA, that's 7 counts of computer crimes. We're putting you away for life you filthy hacker!

To make matters worse, even if the precedent is allowed to stand it's still not going to make any difference. Pedophiles, rapist, and murderers are already being let out early in some cases to make room for mandatory drug sentencing laws.

Once it's allowed for sex offenders, it's only a matter of time before it's applied to drug bust, and the dude who got 18 extra months for his sex offense will get out even earlier to make room for the guy who got an extra five months for smoking weed (cause he called his dealer on his phone to set up the meet).

What does Rocco want?

"...if there's anyone out there who deserves a longer prison sentence, it's a sex offender who victimizes minors..."

Longer than what? Longer than anything? Why not just say you advocate the death penalty for child molesters and be done with it.

I am so sick of the politics of "more": taxes on the rich should be higher. How high? Just higher. We should spend more on health care. How much? Just more. Sentences should be longer for drug dealers, child molesters, terrorists, gun possessors and [flavor of the month], and all "loopholes" should be closed. Fifty years for possession of less marijuana than you used to have in college? Wait, that's not what we meant...

Re: The Brain

Good point. Someday in the not-too-distant future, people will have electronic implants in their brains. These processors will be more powerful than any smart phone of today.
At that point in time, I suppose any crime committed would fall under the CFAA.

Hey a phone is a computer tell Sony to eff off

If the courts now believe that phones are computers, then the DMCA exemption for jailbreaking a phone should apply to all computers. Twisting their logic in the other direction, Geohot should be declared innocent for jailbreaking his PS3.

Even landline phones count

When you use a landline phone, you are actually using several computers. The number you dial is interpreted by a set of computers, including one or several databases, to decide how to complete the call (the keyword if you want to know more about this is "SS7"). The sound of your voice is converted by a computer into a digital stream, which is sent via a set of computers to another computer which will convert it back to analog signals (the keyword here is "G.711"). And that with an old-fashioned analog landline phone.

Now let's talk about elevators. Did you know that many modern elevators are computer-controlled?

Re: Even landline phones count

think of the lights, and speed cameras, and cop`s radar guns that u passed on the way to work
the sign`s were made by tech, using mined(w/ a alot of tech) metal that got here by a simitruck, and airplane and then some sort of wheel

Re: Even landline phones count

think of the lights, and speed cameras, and cop`s radar guns that u passed on the way to work
the sign`s were made by tech, using mined(w/ a alot of tech) metal that got here by a simitruck, and airplane and then some sort of wheel

Re: Re: Should Everyone Who Uses A Phone Or A Computer As Part Of A Crime Get A Longer Sentence?

Re: Re: Re: Should Everyone Who Uses A Phone Or A Computer As Part Of A Crime Get A Longer Sentence?

Oh...

Can I amend my statement? Maybe to something like "a strong, clear, concise argument or a cutting parody of the bad thinking that some people really, sincerely use around here so that everyone will know you're being witty and satirical instead of neither..."

Re: devices used...

"The concept of increasing the sentence or severity level of a crime based on the use or possession of a device during the commission of that crime has been around for generations. Having a firearm in your possession during the commission of a crime, even if their is zero violence, or even the threat of violence, will still net you additional time."

That doesn't make it a good idea, and it's not clear that the principle should be extended to computers. You could just as well do it the other way: because possession of polarized sunglasses doesn't increase the sentence, neither should possession of a loaded shotgun. See? To be a strong argument it needs something more.

Re: Re: devices used...

Yes, it appears that they were just itching for a reason to keep this guy of the street. Stupid judge; there's probably another computer in the other phone that received the call. How many computers were involved between the phones in order to make the call?

The judge, the prosecution, and even the defense, should all be disbarred and sentenced to 28 months probation, during which time THEY can't use anything with a 'computer' in it.

Why let the facts get in the way of a good complaint?

Judges are supposed to follow the law as written - whether they like it or not. (There are out's for them in some cases, but usually not.) The decision they rendered here was based on the language Congress handed them: The court relied on the “exceedingly broad language” of § 1030(e)(1) that “’[i]f a device is “an electronic … or other high speed data processing device performing logical, arithmetic, or storage functions,’ it is a computer.” The court also held that “there is nothing in the statutory definition that purports to exclude devices because they lack a connection to the Internet.”

Congress also wrote the law that, for the most part, takes away a judge's discretion in deciding on the sentence. One can make some arguments for this (it increases predictability, it helps ensure that rich white kids don't get shorter sentences for the same crime as poor black kids); one can make political arguments for it (people feel judges are too lenient and have chosen, through their elected representatives, to be tougher on criminals); and one can make very good arguments *against* it (basically, little in real life is cut and dried and trying to pin things down too much leads to miscarriages of justice). Nevertheless, this is the law we have on the books today.

I'd be the first to agree that it's absurd to enhance a sentence based on "use of a computer" when that "computer" is a cell phone. Hell, I'd even agree that enhanced sentencing for using a computer on the Internet is a bad idea. But I disagree that this is an indictment of the judges involved. It's an indictment of Congress, which passed bad laws.

The first part of fixing a problem is putting the blame in the right place.